In the December, 1997,
issue of the Braille Monitor we reported that the National Federation of the
Blind had sued the Law School Admission Council (LSAC) on behalf of three blind
students: Ross Kaplan, Latonya Phipps, and Shannon Dillon. The suit alleged
that the Council violated the Americans with Disabilities Act by refusing to
allow blind students to use their own readers on the Law School Admission Test
(LSAT), by flagging the test scores of blind and visually impaired individuals
as "non-standard," and by refusing to allow one applicant to use her
Braille writer and scratch paper on the exam.

On Thursday, November 20,
1997, the three would-be law students (represented by the Federation) and the
LSAC struck a negotiated settlement which is a great victory for blind and visually
impaired students. Before discussing the particulars of the settlement agreement
itself, it is helpful to understand the history of this case.

In the fall of 1996 Ross
Kaplan and Latonya Phipps contacted the National Federation of the Blind regarding
problems they were having with the LSAT, and our staff recommended that Mr.
Kaplan and Ms. Phipps discuss the matter with me. Both individuals told me that
the Law School Admission Council had informed them that they could not use their
own well-trained readers to take the LSAT. The Council further informed them
that they would have to use readers selected by LSAC. In addition, neither Ms.
Phipps nor Mr. Kaplan would be permitted to screen their readers ahead of time
or practice with them. According to LSAC, allowing a blind student to use his
or her own reader or permitting any contact between reader and blind student
in advance of the examination would breach examination security. Mr. Kaplan
and Ms. Phipps both took the test under protest, and because of the arbitrary
and discriminatory reader policy, their scores suffered accordingly.

Shannon Dillon applied
to take the December, 1996, administration of the LSAT. She submitted her original
application requesting that the test be administered in Braille. A few weeks
later she phoned LSAC and informed officials that she needed to bring her Braille
writer and paper with which to take notes. LSAC denied her request, stating
that it was untimely. We argued with LSAC that it should allow the request,
but it held firm on its position. Ms. Dillon took the LSAT on December 7, 1996,
without the capacity to take notes though her sighted colleagues in the next
room were permitted to take as many notes as they desired. In February Ms. Dillon
took the exam again, and this time she was permitted to use her Braille writer.
Significantly, she achieved a much better score.

After the examination all
three students received copies of letters informing the law schools to which
they had applied that the test had been administered under nonstandard timing
conditions. Therefore LSAC could not predict the meaning of the score. This
practice is called "flagging," and it is a common practice throughout
the standardized testing industry. Here is the text of the LSAC flagging letter:

Dear Colleague:

This candidate took a 6/96
LSAT under nonstandard timing conditions in order to accommodate his or her
disability. The nonstandard test this candidate received was administered on
or about the same test date as the corresponding standard administration.

Because this candidate's
score was earned under nonstandard timing conditions, it is important to note
that the degree of comparability of this score to scores earned under standard
conditions cannot be determined. The LSAC's Cautionary Policies Concerning LSAT
Scores and Related Services explain:

LSAC has no data to demonstrate
that scores earned under accommodated conditions have the same meaning as scores
earned under standard conditions. Because the LSAT has not been validated in
its various accommodated forms, accommodated tests are identified as nonstandard,
and an individual's scores from accommodated tests are not averaged with scores
from tests taken under standard conditions. The fact that accommodations were
granted for the LSAT should not be dispositive evidence that accommodations
should be granted once a test taker becomes a student. The accommodation needed
for a one-day multiple choice test may be different from those needed for law
school course work and examinations.

If this applicant has consented
to the release of

information related to
his/her request for accommodations, information, including, but not limited
to the following: the type of accommodations provided, the LSAT Accommodation
Form, the LSAT Accommodations Request Verification Form, the Report of Assessment
(if applicable), Accommodations Granted/Testing/Time Tracking Form, and all
statements or documentation submitted by physicians or other licensed professionals
will accompany the Law School Report.

Test Administration

Law Services

That was the letter. On
a number of occasions we attempted to resolve all of these issues with LSAC.
It is generally prudent to negotiate in an attempt to resolve issues before
they become full-blown lawsuits. Unfortunately, LSAC officials refused to negotiate
on any of the points raised with them. We told them that they could not easily
dismiss our concerns. When attempts to negotiate met with no response, we felt
that we had no choice but to file a lawsuit against LSAC. As the December Monitor
spells out in some detail, we filed a lawsuit on April 4, 1997, in the United
States District Court for the Eastern District of Pennsylvania. Many news agencies
contacted us and thereafter ran stories on radio and in newspapers regarding
the suit. We made no attempt to publicize the suit. Reporters who routinely
cover the Philadelphia Federal Court noticed that the lawsuit had been filed,
and after that the calls came in steadily.

Many of the reporters asked
the question: if LSAC provides a reader, why should the blind test-taker care
who that reader is? The relationship between a reader and a blind person is
highly individual. Like sighted persons blind people develop particular methodologies
for reading certain items. Multiple choice examinations require different reading
methods from essay examinations. Timed tests call for much different strategies
than reading a series of letters in untimed situations. In other words each
blind person must train a reader to serve as his or her eyes. When preparing
for the LSAT, each sighted student develops a range of techniques for dealing
with the examination. Similarly a blind person must train his or her reader
to read the examination in a way that will be most efficient. This is particularly
true with the LSAT because it is a timed and high-stakes examination.

Put another way, it is
crucial that the blind person have control over and familiarity with the reader.
If the test-taker cannot establish an effective relationship, the results are
likely to be disastrous. Ross Kaplan and Latonya Phipps were not permitted to
meet with their readers ahead of time. They were thrown into a high-pressure
examination in which they could not concentrate on the test but rather had to
spend a considerable amount of energy and attention training a reader whom they
had never met. In addition, in some cases LSAC officials have found readers
who had never before read to a blind person. The problem has been further compounded
by the fact that at times LSAC has not secured a reader until a few hours before
the scheduled administration of the test.

Shannon Dillon faced an
entirely different problem. She was provided the examination in Braille, but
she was not permitted to use her Braille skills to take notes. Her sighted counterparts
were permitted to do so. Obviously this put Shannon Dillon at a great disadvantage.

These problems are at least
clear-cut, but the flagging issue is a very difficult one. On one hand, the
LSAC letter seems blatantly discriminatory. The letter in effect says that,
because we as blind people take the examination under accommodated circumstances,
our scores mean nothing. When I received my licenses to practice law, they were
not sent with an accompanying letter stating that I had earned my law license
under non-standard conditions and that the Board of Bar Examiners could not
predict my ability and competence to practice law.

On the other hand, LSAC
is technically correct. Council officials have conducted internal studies showing
that accommodated tests taken by blind and visually impaired students do not
predict their future ability to perform in law school, whereas tests taken under
non-accommodated conditions do predict the ability of sighted students in law
school. In fact, the blind and visually impaired students do better in law school
than their test scores would indicate. So, in other words, the LSAT is not a
fair and accurate test for blind and visually impaired students.

The problem is that with
very few exceptions law schools require that blind students take the examination.
Probably many law schools labor under the misguided belief that, since the advent
of the ADA, the LSAT is required to administer a fair test, and therefore scores
achieved by the blind must be accurate.

The issues raised in this
case are not the traditional ones present in most lawsuits. It is easy to understand
testimony about whether the light was green or red when the defendant ran through
the intersection, but it is far more difficult for a judge or jury to consider
particular accommodations and academic issues pertaining to the blind. After
all, blind candidates average only about 100 of the 155,000 individuals who
take the LSAT each year. Because the issues surrounding blindness are so little
understood in the community and by the courts, a judge or jury would have a
difficult time understanding the nuances of an LSAC-mandated reader as opposed
to a reader brought by the blind student. For these reasons we have always believed
that the issues surrounding the lawsuit would best be addressed through negotiation
and discussion. Ultimately, however, we had to sue to get LSAC's attention and
to demonstrate that we were serious about these issues. In the end it was a
negotiated settlement that resolved the issues in this case.

First, LSAC has agreed
to modify its reader policy. It still has the obligation to provide the reader,
but it must do so under some very specific conditions. The problem with LSAC's
reader policy in the past was that blind students had absolutely no control
over the accommodation they would use to take the exam. Now, when a blind applicant
requests the use of a reader, LSAC must provide the name of a reader in the
student's area within two weeks of the application. Subsequently the blind student
may screen and interview the proposed reader to determine whether he or she
is in fact qualified. Once the reader is agreed upon, the blind student may
practice and prepare for the exam with the reader for a minimum of five hours,
all at LSAC's expense. The reader and the blind student may practice more than
five hours, but the blind student is responsible for making such arrangements.
At any time before five days in advance of the exam, the blind student has the
right to reject any LSAC-designated reader, and LSAC has the obligation to find
another reader.

In negotiating the settlement,
we pointed out to LSAC that it would be far easier for officials simply to allow
blind students to bring their own readers. If that were the case, LSAC would
not have to bear additional costs and establish a new layer of bureaucracy.
LSAC acknowledged this point but still insisted that it must have some control
over the process to maintain the integrity of the examination.

Incidentally, no other
large testing organization currently requires that the blind candidate use the
entity's reader. All other major testing organizations, as far as we know, permit
the blind student to use his or her own reader. Apparently these organizations
do not believe that allowing blind individuals to use their readers of choice
violates the security and integrity of their examinations.

The agreement also calls
for the Federation and LSAC to work together to identify pools of qualified
readers throughout the country. In other words, we can have a direct influence
upon the quality and ability of the readers available to us.

Overall I believe the settlement
is a good one. It puts a great deal of control back into the hands of blind
students. Now a blind applicant who wishes to use a reader can hand-pick the
person. In addition the LSAC will allow the reader and the blind applicant to
practice and prepare for the examination ahead of time. In other words, the
blind student can instruct and train the reader on how to read the examination.

The settlement also makes
it clear that blind and visually impaired candidates may bring a Braille writer
and scratch paper as long as the LSAC is informed of this plan ahead of time.
The Shannon Dillon incident was a mistake, and in fact LSAC corrected that mistake
only a few months later. However, it is now clear that LSAC must allow blind
people to use Braille devices to access the examination effectively.

Finally, the agreement
states that the Federation and LSAC will continue discussing the flagging letter.
We intend to urge LSAC to gather the data that will allow the Council to issue
a more accurate letter reflecting the blind individual's ability. It is not
fair to any student to say that he or she has worked hard to take the examination
but that the score means nothing. If we are required to take standardized examinations,
we should have the right to expect that our scores mean something.

The whole area of validating
standardized examinations is in flux. Many researchers and experts are spending
considerable energy and resources on determining how to validate scores achieved
under non-standard conditions. We will continue advocating for a fairer and
more nearly equal system.

The fact that LSAC has
agreed to a continuing dialogue with us is a major victory. When we first began
this long and arduous process, LSAC exhibited no willingness to consider the
topic at all. As happened when we originally filed the suit, this settlement
has attracted a good deal of attention in newspapers and journals across the
country. Here is the article which appeared in the November 25, 1997, edition
of the Chronicle of Higher Education.

Lawsuit Charging LSAT Sponsor
with Bias

Against Blind Test-Takers
Is Settled

by Karla Haworth

The sponsor of the Law
School Admissions Test last week agreed to allow blind and visually impaired
students to meet test readers and practice with them before taking the test.
The agreement settles a discrimination lawsuit filed in April by the National
Federation of the Blind.

The lawsuit charged that
three blind students had been prevented from using their own readers and note-taking
equipment while taking the Law School Admissions Test, which is administered
by the Law School Admission Council.

The students said they
had scored poorly on the LSAT because they had not been able to use their own
readers and sought a court order prohibiting the Council from discriminating
against blind test-takers.

The council refuses to
allow blind students to take the test with their own readers to guard against
cheating. But like sighted people, blind students develop strategies for taking
tests, and their readers must be familiar with those strategies to avoid wasting
test time, said Scott LaBarre, a lawyer for the Federation.

Mr. LaBarre said that before
the agreement, blind students "had no control" over their tests. Test-takers
would not know who their readers would be until the day of the examination.
Mr. LaBarre said that in some cases students had been assigned readers who had
never worked with a blind person before.

"It's a high-pressure
test, so trying to train somebody to read for the first time was a horrible
distraction," he said.

Joan Van Tol, a lawyer
for the Council, said that, before the lawsuit was filed, the Council had never
received complaints from blind people about their readers. The Council does
not, however, require its readers to undergo any special training, she said,
and in any event readers are rarely requested.

Under the agreement reached
Thursday, the Council will establish a new policy on blind test-takers. Under
that policy blind people who take the test will be able to meet beforehand with
the readers to discuss test-taking strategies and to take a practice test. The
readers will continue to be appointed by the Council. The test-takers may also
bounce readers who they feel are unqualified, Mr. LaBarre said.

"The people who are
most expert about readers for the blind are blind people themselves," Mr.
LaBarre said. "This policy recognizes the fact that we're the ones with
the expertise in this area."

The Council and the Federation
also agreed to discuss the Council's "nonstandard" test-administration
policy, which the Federation believes is discriminatory. Under that policy the
Council alerts recipients of scores that the test was given under nonstandard
conditionsincluding the use of a reader. Letters that accompany the scores
should be interpreted with "great flexibility and sensitivity," said
Ed Haggerty, a spokesman for the Council.

Philip D. Shelton, the
Council's president, said he was pleased with the agreement.

"Our goal has always
been to make certain that the scores we report reflect the abilities of the
individual test taker and not the person assisting him or her," he said.
"I believe that today's agreement meets everyone's goals."

Because this settlement
has very real implications for every blind or visually impaired person hoping
to attend law school, we are also reprinting here the text of the settlement
agreement's pertinent sections so that blind students and other interested people
can read the precise language.

ORDER

AND NOW, this 20th day
of November, 1997, upon consideration

of the Settlement Agreement
and Stipulation for Dismissal entered

by the parties and appearing
of record,

IT IS ORDERED that the
above-captioned action is dismissed pursuant to Local Rules of Civil Procedure
41.1(b) under the condition stated in the Settlement Agreement.

BY THE COURT:

IN THE UNITED STATES DISTRICT
COURT

FOR THE EASTERN DISTRICT
OF PENNSYLVANIA

ROSS KAPLAN, LATONYA PHIPPS,

AND SHANNON DILLON, Plaintiffs,
NO.: 97-CV-2350

LAW SCHOOL ADMISSION COUNCIL,
a Delaware Corporation doing

business in the Eastern
District of Pennsylvania, Defendant

SETTLEMENT AGREEMENT

The parties to the above-captioned
action, being Ross Kaplan, Latonya Phipps, and Shannon Dillon, plaintiffs, and
the Law School Admission Council, defendant, hereby enter the following Settlement
Agreement:

1. LSAC READER POLICY As
referred to herein, the term "LSAC" shall refer to the

Defendant Law School Admission
Council; the term "LSAT" shall refer to the Law School Admission Test;
and the term "Applicant" shall refer to persons who apply to LSAC
to take the LSAT.

Subject to the provisions
contained herein, only persons supplied by the LSAC may serve as Readers of
the LSAT to blind and severely visually impaired applicants. Defendant hereby
agrees to modify its policies and practices with respect to providing reasonable
accommodations to blind and severely visually impaired applicants who take the
Law School Admission Test, with respect to LSAC's provision of readers. Within
fourteen (14) days following receipt of a written request from any blind or
severely visually impaired applicant for the Reader accommodation, LSAC shall
provide the name, address, and telephone number of a LSAC-provided Reader to
the applicant. It thereafter shall be the responsibility of the applicant to
screen the Reader to determine whether he or she is acceptable as a Reader for
the applicant. The applicant may reject use of the proposed reader provided
by LSAC, upon written notification to LSAC, whereupon LSAC shall provide the
name, address, and telephone number of a substitute Reader.

Prior to five (5) days
before the scheduled administration of the LSAT, the applicant may reject Readers
proposed by LSAC. Should the applicant reject a proposed LSAC Reader five (5)
or less days before the scheduled administration of the LSAT, LSAC shall make
all reasonable efforts to provide a substitute Reader to the applicant.

Blind and severely visually
impaired applicants may arrange to meet with their assigned Reader to become
acquainted with the Reader, familiarize themselves with these guidelines, review
the procedures to be followed during the administration of the LSAT, and schedule
practice sessions as hereinafter described.

LSAC agrees to engage in
a coordinated effort with the National Federation of the Blind to identify readers
and pools of readers in various geographical locations and LSAT sites within
the United States of America.

2. PRE-LSAT PRACTICE LSAC
agrees that Readers provided under this Reader policy shall be made available
to prepare for the LSAT with the applicant, for a minimum of five (5) hours.
Nothing in this agreement shall prohibit the applicant and Reader from arranging
for additional practice sessions at the applicant's expense, if any. It is understood
and agreed between the parties that the unavailability of the Reader to meet
with the applicant beyond the five (5) hours set forth above shall not be grounds
for the rejection of a Reader by the applicant. The practice sessions between
the applicant and the Reader may be utilized for taking practice tests or, at
the applicant's discretion, in any other reasonable way to prepare with the
Reader for the LSAT.

3. ADMINISTRATION OF THE
TEST Readers supplied to blind and severely visually impaired applicants shall
be instructed to read the test verbatim and will not be permitted to paraphrase,
interpret, modify, or otherwise vary from the text, except as set forth herein.
The Reader shall not define words; however, Readers may, at the request of the
applicant, spell words and re-read all or part of the text or questions within
the section that is being performed. While all portions of the test must be
read verbatim by the Reader, the applicant will be permitted to direct the Reader
to specific portions of the test to be read or re-read, including the order
in which the text is to be read, and also will be permitted to direct the Reader
to scan for particular words or phrases as specifically identified by the applicant
to be read or re-read verbatim, as well as to identify the type and location
of punctuation marks contained in the text.

4. ADDITIONAL ACCOMMODATIONS
Nothing contained in this Agreement shall limit the availability of other reasonable
accommodations to be supplied by LSAC under the Americans with Disabilities
Act, as requested and supported by documentation supplied by the applicant.
LSAC will allow applicants to utilize audiocassette, Braille, or large print
versions of the test and applicant-provided Braille scratch paper and Braille
writers in taking the LSAT, as requested and supported by documentation supplied
by the applicant. LSAC will encourage all blind and severely visually impaired
applicants requesting any accommodation to submit their request for accommodations
as early in the registration process as possible. LSAC shall provide a copy
of its Reader policy upon request.

5. LSAC NONSTANDARD ADMINISTRATION
LETTER LSAC agrees that, at the request of the National Federation of the Blind
(NFB), it will meet with and consider NFB's views regarding the language that
accompanies the flagged test scores of blind and severely visually impaired
persons.

Respectfully submitted,

Attorneys for Plaintiffs

Scott C. LaBarre, Esquire

Martin J. King, Esquire

Attorneys for Defendant

EASTBURN & GRAY, P.C.

Joanne D. Sommer, Esquire

Joan Van Tol, Esquire

In 1940, when the National
Federation of the Blind came into being, it created only a ripple in the blindness
field. Today we send tidal waves of change throughout the blindness community.
The LSAC settlement represents another milestone on our journey. We forced an
organization that refused to give the blind any control or self-determination
to allow a significant measure of control. With LSAC's renewed commitment to
provide quality, equal treatment to the blind, I am confident that we will forge
new agreements in the future that will insure even better treatment of the blind
in the standardized testing arena.

In the past, the future
of the blind rested almost exclusively in the hands of others. Today we control
our own destiny. The victory we have achieved in the LSAC case reflects our
increasing strength in the blindness field. Because of our work people realize
that the blind truly speak for themselves. When matters arise concerning the
blind, it is best to consult the blind before taking any action. Without the
National Federation of the Blind, LSAC would still have the power to dictate
to Ross Kaplan, Latonya Phipps, Shannon Dillon, and every other blind student
exactly how the LSAT would be taken. Because of the National Federation of the
Blind, the trend has been reversed, and we have assumed control over our own
futures.

As Dr. Jernigan has said,
we change what it means to be blind by individual actions collectively focused.
Through the single action of suing LSAC, we have expanded the rights of blind
students in our continuing effort to achieve equal access. When we help one
segment of our community reach new heights of independence and equality, all
of us climb one step closer to true equality and freedom in the world. That
is why we have formed the National Federation of the Blind.